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Tuesday, 6 September 2011

Lurking quietly among the European Union's various IP legislation goals for the last two years is a proposal to extend the term of copyright in sound recordings and performances from 50 to 70 years, starting from the date of fixation or publication.

The IPKatreported on this issue when it was being debated in the European Parliament back in 2008 and 2009, a debate which resulted in Members of the European Parliament (MEPs) voting in favour of an amended proposal which scaled back the term extension from 95 years to 70 years, and included mechanisms to ensure that a percentage of the royalties arising during the extended term would go to session musicians, regardless of pre-existing contractual arrangements.

After the vote, silence ... until now

Then everything went relatively quiet. Non-European readers might assume that, once the European Parliament voted in favour of a Directive, the law would be adopted, subject perhaps to some sort of Grand Vizier character applying a signature or quasi-monarchical seal to a suitably ornate document, but European lawmaking is rarely so straightforward (or colourful, alas).

Most legislation requires "co-decision" by both the Parliament and the Council (which is composed of the national governments), as explained in the useful little graphic on the left. When the copyright term extension proposal went to the Council, however, it lost all momentum and appeared to have been placed in cold storage, reportedly due to a blocking minority of countries.

Now, due to the reported thawing of Denmark's position, possibly due to global warming [Merpel says: or as a result of interested lobby groups and countries applying the heat?] the proposal has come out of the refrigerator. According to the agenda for tomorrow's COREPER meeting,published yesterday, the proposal to amend Directive 2006/116/EC (that's the Term Directive to you and me) is up for deliberation as item 18, suggesting it will be back on the Agenda for the Council to decide before too long (thanks to Alexander von Mühlendahl for additional clarification).

Incidentally, a group of 40 MEPs, led by Swedish Pirate Party representative Christian Engström, had tried to snatch the ball back from Council in recent months, relying on a procedural mechanism which allows a newly elected Parliament to reconsider items voted by the previously dissolved Parliament, but he reported yesterday in his blog that his attempt had been turned down, leaving the way open for Council to adopt the proposal.

The UK position: Do Ministers listen to Professors?

Various commentators, including Mr Engström, note with some disappointment that the UK appears committed to supporting the term extension, despite having commissioned the Hargreaves Review which advised exactly the opposite. Can this be true, the IPKat wonders?

The Hargreaves Report

Well, it's not precisely true to say that Hargreaves concluded that the UK should vote against term extension, if one reads the Report with a pedantic eye, but on the other hand, Mr Engström's summary is not all that far off the mark.

Professor Hargreaves noted that "IP policy has not always been developed in a way consistent with the economic evidence", and as an example of such legislative short-sightedness he cites exactly these proposals to extend the term of copyright in sound recordings Regarding such extensions he says:

Economic evidence is clear that the likely deadweight loss to the economy exceeds any additional incentivising effect which might result from the extension of copyright term beyond its present levels. This is doubly clear for retrospective extension to copyright term, given the impossibility of incentivising the creation of already existing works, or work from artists already dead.

Despite this, there are frequent proposals to increase term, such as the current proposal to extend protection for sound recordings in Europe from 50 to 70 or even 95 years. The UK Government assessment found it to be economically detrimental. An international study found term extension to have no impact on output.

However, the Hargreaves Report then catches itself in the act of giving advice on something outside its remit, shrugs its shoulders, and makes it pretty clear which way the advice would point if only someone had thought to ask:

Legitimate questions of culture, fairness and “just reward” for creators also arise, and have tended to dominate the debate on copyright issues. Indeed, they were explicitly cited by the previous Government as justification for extension of copyright term, despite the economic evidence. These questions are clearly significant, and it is not part of the Review’s task to determine how they should be resolved. We simply invite Government to consider that as copyright becomes increasingly economically important, it is vital that economic considerations are fully weighed in the balance. ... If the current imbalance in the debate on copyright is allowed to continue, the economic price will be high.

So presumably the UK Government took these words to heart, and thought long and hard about the "likely deadweight loss to the economy"? Culture Minister Ed Vaizey certainly appears to have rather cheerfully suppressed any second thoughts he might have had as a result of such soul-searching. In a reassuringly concise account of his struggle to balance the various factors and the doubts which Professor Hargreaves' warnings undoubtedly caused him, in July he told the AGM of the British Phonographic Industry:

And while we are in the area of copyright, I would just like to add that the Government will continue to support moves in Europe to extend copyright in sound recordings.

So while Hargreaves (almost) said that extending term to 70 years was a bad idea, and certainly counselled against taking this matter lightly, the UK Government has nevertheless signalled that it will vote for term extension when it comes before the Council.

This Kat finds it disappointing that, despite all the talk of a brave new evidence-based method of making policy, there has been no appreciable change in the UK Government's approach to the wisdom of ever-increasing copyright terms. This would seem to be a prime candidate for policy reversal or reconsideration, if Professor Hargreaves is to be believed.

2 comments:

Anonymous
said...

As I understand it, the Hargreaves report didn't make any recommendation regarding copyright term extension. It noted that that the Gowers report had considered exactly this question, and had opposed it, and Hargreaves seemed understandably annoyed that the Government had then let itself be swayed by lobbying from celebrities into ignoring the considered and evidence-backed report from Gowers. In particular, the report says:

10.10 Lobbying is a feature of all political systems and as a way of informing and organising debate it brings many benefits. In the case of IP policy and specifically copyright policy, however, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes. Further distortion arises from the fact (not unique to this sector) that there is a striking asymmetry of interest between rights holders, for whom IP issues are of paramount importance, and consumers for whom they have been of passing interest only until the emergence of the internet as a focus for competing technological, economic, business and cultural concerns.

...

10.12 A prominent and persistent example of the lobbying problem concerns the duration of copyright protection, which has been periodically extended in recent decades. In spite of clear evidence that this cannot be justified in terms of the core IP argument that copyright exists to provide economic incentives to creators to produce new works. As has been noted by a number of commentators, no one has yet discovered a mechanism for incentivising the deceased.

10.13 The most recent example of such extensions involved a UK decision to support a still incomplete EU process to extend the rights of owners of sound recordings from 50 years to 70 years. Such an extension was opposed by the Gowers Review and by published studies commissioned by the European Commission. A decision in favour of the change was, nonetheless, announced by the Secretary of State for Culture, Andy Burnham, in December 2008. The Government’s own economic impact assessment subsequently estimated that extension would cost the UK economy up to £100m over the extended term. One justification for extension might be that Ministers wished to afford extended copyright as a mark of respect and gratitude to artists and their families – a perfectly legitimate argument, though one that ignores the fact that very often artists’ rights are owned by corporations. Independent research commissioned for the Gowers Review suggested that the benefits to individual artists would be highly skewed to a relatively small number of performers.

How many successful artists do great work late in their careers, once they have experienced the "incentives" afforded by copyright? The early works of struggling artists always seem to have more of the rage/angst/pathos that makes for great art. I say keep artists poor and struggling, and the world will be a better place. (I'm only half joking - serious questions must be asked about the effects of copyright term as an incentive.)

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